TENDER NO. KPLC1/8A/PT/1/10-11 FOR TAX ADVISORY SERVICES

Transcription

1 TENDER NO. KPLC1/8A/PT/1/10-11 FOR TAX ADVISORY SERVICES OCTOBER 2010 ALL TENDERERS ARE ADVISED TO READ CAREFULLY THIS TENDER DOCUMENT IN ITS ENTIRETY BEFORE MAKING ANY BID (TENDER DOCUMENT FOR TAX ADVISORY SERVICES TWO ENVELOPE SYSTEM) THE KENYA POWER & LIGHTING COMPANY LIMITED CENTRAL OFFICE, STIMA PLAZA, KOLOBOT ROAD, PARKLANDS, P.O. BOX , NAIROBI, KENYA. Telephones: ; Pilot Lines Telephones: /1-5; /2-3 Cellular Facsimile: ; Telegrams: ELECTRIC Website:

2 TABLE OF CONTENTS SECTION CONTENTS PAGE NO. PART A PART B PART C SECTION I SECTION II INTRODUCTION. 4 GENERAL INFORMATION...5 TERMS OF REFERENCE...6 INVITATION TO TENDER....8 TENDER SUBMISSION CHECKLIST..10 Part A Non-Financial Part B Financial Table of Paragraphs on Instructions To Tenderers.12 SECTION III INSTRUCTIONS TO TENDERERS (ITT) Appendix to Instructions To Tenderers SECTION IV SECTION V SECTION VI SCHEDULE OF REQUIREMENTS.. 36 PRICE SCHEDULE FOR SERVICES...37 EVALUATION CRITERIA Table of Clauses on General Conditions of Contract...55 SECTION VII SECTION VIII SECTION IX SECTION X GENERAL CONDITIONS OF CONTRACT (GCC).. 56 SPECIAL CONDITIONS OF CONTRACT (SCC).. 65 TENDER FORM 67 CONFIDENTIAL BUSINESS QUESTIONNAIRE FORM (CBQ)

3 3 SECTION XI SECTION XII SECTION XIII SECTION XIV SECTION XV SECTION XVI SECTION XVII SECTION XVIII SECTION XIX SECTION XX SECTION XX I SECTION XXII TENDERER S REFERENCES.. 72 TENDERER S COMMENTARIES...74 METHODOLOGY AND WORKPLAN TEAM COMPOSITION AND TASK ASSIGNMENTS..76 FORMAT OF CURRICULUM VITAE (CV) FOR PROPOSED PROFESSIONAL STAFF...77 TIME SCHEDULE FOR PROFESSIONAL PERSONNEL.79 ACTIVITY. 81 DECLARATION FORM...82 DRAFT LETTER OF NOTIFICATION OF AWARD.83 DRAFT LETTER OF NOTIFICATION OF REGRET...84 CONTRACT AGREEMENT FORM.85 THE DETAILS OF SERVICES

4 4 A. INTRODUCTION Dear Prospective Bidder, 1. The Kenya Power & Lighting Company Limited (KPLC) intends procure the services of a Tax Consultant a) to review KPLC operations with respect to tax for the two year period between July 2008 to June 2010, and b) to offer tax advisory services and support over a four year period beginning xzjuly The main scope of the advisory service is the performance of a tax health check on all major operations of KPLC and recommend improvements to KPLC Management. This may also include provision of expert tax advise on specific transactions and events including projects, representing KPLC in tax matters with the tax authority (KRA), certification and filing of tax refund claims that may exist or arise during the tenure. The Advisory services will apply on; Value Added Tax (VAT), income taxes (including Corporate Tax, Withholding Tax and Pay As You Earn), Customs Duty and any other applicable taxes. 3. The Tax Consultant will also be expected to provide training to KPLC staff on the relevant tax aspects in the various sections. 4. The Tenderer is advised to follow and conform to the information contained in the Tender Document in preparing and submitting its bid. Yours faithfully, FOR: THE KENYA POWER & LIGHTING COMPNAY LIMITED LAWRENCE YEGO CHIEF MANAGER, FINANCE.

5 5 B. GENERAL INFORMATION 1. The Kenya Power & Lighting Company Limited (KPLC) is a limited liability company which was incorporated in 1922 as the East African Power & Lighting Company Limited after the merger of two private power utilities in Nairobi and Mombasa. Its registered office is at Stima Plaza, Kolobot Road Parklands, Nairobi. 2. KPLC is a licensed electricity transmission and distribution Company in Kenya. It has entered into power supply agreements with a number of electricity generators. 3. KPLC s operations are geographically split in four regions. Nairobi Region with the main office in Nairobi Central Business District, West Kenya Region with the main office in Nakuru, Coast Region with the main office in Mombasa Central Business District and Mount Kenya Region with the main office in Nyeri. West Kenya Region has two sub regional offices in Kisumu and Eldoret while Mount Kenya has a sub-regional office in Thika. All the regions generate tax data. 4. KPLC is a VAT withholding agent for KRA. 5. Until January 2010, KPLC was not eligible for Investment Deduction Allowance (ID). However, an amendment to the Finance Act 2009 was done in recognition of the pivotal role KPLC plays in the energy sector and economy as a whole. 6. It is KPLC s policy to conduct a tax health check at least once every four years. The last such check was conducted in The expansion of operations within KPLC and other developments within the energy sector together with the recent changes in tax legislation necessitate extra vigilance and continuous review of transactions and events for tax compliance and also to ensure that only the right amount of tax is paid. 8. KPLC is one of the major tax payers in Kenya having ranked among the top five tax payers for the last three years. Over the last two years KPLC has grown its customer base from 1 million to 1.4 million currently. Further, new organizations that complement the services offered by KPLC have been created by the government.

6 6 C. TERMS OF REFERENCE 1. Objectives of the Assignment to be Achieved by the Successful Tenderer a) Carry out a review of tax compliance by KPLC in its operations over the last two year period. b) Assist KPLC in properly planning for its tax obligations in order to derive maximum tax benefits under the current tax laws, c) Recovery of any tax credits from KRA within reasonable time and cost. d) Ensure availability of resource persons for specific or general consultations on tax related matters at all times. e) Train KPLC staff especially in our Finance and Procurement Divisions on handling of tax matters that relate to routine operations in these areas. f) Representation and provision of informed responses to queries from the tax authority and other institutions on tax related matters. 2. Scope of Consultancy. It includes but is not limited to - a) Reviewing existing KPLC with respect to tax and recommend changes beneficial to KPLC. b) Providing training to staff on the relevant tax aspects in the various sections. c) General consultancies on tax matters i.e. (i.) Provision of expert tax advice on specific transactions and events including projects (ii.) Representing KPLC in tax matters with the tax authority (KRA) (iii.) Certification and filing of tax refund claims that may exist or arise during the tenure, 3. Professionalism and experience The Tax Consultant should be a firm with substantial relevant experience and who can be able to offer Advisory services in the management of Value Added Tax (VAT), Income taxes (including corporate tax, withholding tax and Pay as you earn ), customs duty and any other applicable taxes. i) The Successful bidder firm shall at all times during the period of the engagement conduct itself in a manner suited to the best interests of The Kenya Power & Lighting Company Ltd. ii) The Tax Consultant should demonstrate the capability of providing training to staff on the relevant tax aspects in the various sections

7 7 iii) The successful bidder should have good credentials in handling relevant Kenyan transactions. It should also have appropriate experience in emerging markets especially the East African region. (This will be an added advantage) iv) The Tax Consultant should have acted in similar roles within the last ten years. 3. Reports and Time Schedules It is expected that the winning bidder will enter into discussion and agreement with KPLC on the approach and action plans to realize the basic objective of the appointment, thus the review of tax matters in operations of KPLC over the last two years and submit all reports called for within a period of two months (60 days) from the commencement date of the contract. 4. Deliverables a) A tax audit report specifying each case of non-compliance and the necessary remedy, b) A simplified tax guide with specific focus on KPLC interest areas in addition to tax training manuals c) Tax refund certificates (in the event of a claim) d) Responses to the tax authority on issues raised (where applicable)

8 8 SECTION I - INVITATION TO TENDER DATE: TENDER REFERENCE NUMBER AND NAME: KPLC1/8A/PT/1/10-11 TENDER FOR PROVISION OF TAX ADVISORY SERVICES 1.1 The Kenya Power & Lighting Company Ltd (KPLC) invites bids from eligible Tenderers for the provision and supply of Tax Advisory Services. Interested eligible Tenderers may obtain further information from the Chief Manager, Finance or Financial Accounting Manager, The Kenya Power & Lighting Company Ltd at Stima Plaza, 1 st Floor, Kolobot Road, P.O. Box Nairobi, Kenya. 1.2 Tender documents detailing the requirements may be obtained from the Chief Manager Supplies, Stores and Transport, The Kenya Power & Lighting Company Ltd on the 3rd Floor, Stima Plaza, Kolobot Road, Nairobi, on normal working days from Monday to Friday (excluding any public or gazetted holiday) beginning on 6 th October 2010 between 9.00 a.m. & p.m. and 2.00 p.m. & 4.00 p.m. upon payment of a non refundable fee of Kenya Shillings Three Thousand (KSh. 3,000/=) only or the equivalent amount in United States of America Dollars (US$) using the selling exchange rate ruling at the date of the tender document purchase provided by the Central Bank of Kenya (See Central Bank of Kenya website- Payment shall be made in cash or by Bankers Cheque at the 1 st Floor of Stima Plaza, Kolobot Road, Nairobi, Kenya. 1.3 Completed Tenders are to be enclosed in plain sealed envelopes marked KPLC1/8A/PT/1/10-11 Tender for provision of Tax Advisory Services, addressed and deposited in the Company Secretary s Office located at KPLC premises, Stima Plaza, 7th Floor, Kolobot Road, Nairobi, Kenya so as to be received on or before am on Friday 29 th October Prices quoted should be net inclusive of all taxes and delivery (where applicable) must be in Kenya Shillings and shall remain valid for ninety (90) days from the closing date of the tender.

9 9 1.5 Tenders will be opened promptly thereafter in the presence of the Tenderer s or their representatives who choose to attend in KPLC Auditorium at Stima Plaza, Kolobot Road, Parklands, Nairobi.

10 10 SECTION II - TENDER SUBMISSION CHECKLIST A. Tender Submission Format - Non-Financial Proposal This order and arrangement shall be considered as the Tender Submission Format, Non- Financial. Tenderers shall tick against each item indicating that they have provided it. No. Item Tick Where Provided 1 Professional Indemnity Cover 2 Declaration Form 3 Duly completed Tender Form 4 Copy of Company or Firm s Registration Certificate 5* Copy of PIN Certificate 6* Copy of Valid Tax Compliance Certificate 7 Confidential Business Questionnaire (CBQ) 8 Firm profile 9 Names with full contact as well as physical addresses of previous customers of similar services 10 Any other document or item required by the Tender Document that is non-financial. (The Tenderer shall specify such other documents or items it has submitted) B. Tender Submission Format Financial Proposal This order and arrangement shall be considered as the Tender Submission Format, Financial. Tenderers shall tick against each item indicating that they have provided it. No. Item Tick Where Provided 1 Complete Price Schedules 2 Audited Financial Statements of the Tenderer. The audited financial statements required must be those that are reported within fifteen (15) calendar months of the Date of the Tender Document. (For companies or firms that are registered or incorporated within the last one calendar year of the Date of the Tender Document, they should submit certified copies of bank statements

11 11 covering a period of at least six months prior to the date of the tender document. The copies should be certified by the Bank issuing the statements. The certification should be original). 3* Any other document or item required by the Tender Document that is financial. (The Tenderer shall specify such other documents or items it has submitted) *NOTES TO TENDERERS ON TENDER SUBMISSION CHECKLIST 1. Valid Tax Compliance Certificate shall be one issued by the relevant tax authorities and valid for at least up to the tender closing date. All Kenyan registered Tenderers must provide a valid Tax Compliance Certificate. 2. All Kenyan registered Tenderers must provide the Personal Identification Number Certificate (PIN Certificate). 3. A non-financial document or item includes one that does not contain or reveal the tender price(s) of the services and the required audited financial statements. A Tenderer shall not insert financial documents or items in the Non-financial tender submission envelopes or packages. 4. A financial document or item includes one that contains all information on the tender price(s) of the services and the required audited financial statements. A Tenderer shall not insert Non-financial documents or items in the Financial tender submission envelopes or packages.

12 12 TABLE OF PARAGRAPHS ON INSTRUCTIONS TO TENDERERS Contents 3.1 Definitions Eligible Tenderers Joint Venture/ Consortium Cost of Tendering Contents of the Tender Document Clarification of Documents Amendment of Documents Language of Tender Documents Comprising the Tender Tender Form Tender Prices Tender Currencies Tenderer s Eligibility and Qualifications Conformity of Services to Tender Documents Demonstration(s), Inspection(s) and Test(s) Warranty Tender Security Validity of Tenders Alternative Offers Number of Sets of and Tender Format Preparation and Signing of the Tender Sealing and Outer Marking of Tenders Deadline for Submission of Tenders Modification and Withdrawal of Tenders Opening of Tenders Process to be Confidential Clarification of Tenders and Contacting KPLC Preliminary Evaluation and Responsiveness Minor Deviations, Errors or Oversights Technical Evaluation and Comparison of Tenders Financial Evaluation Preferences Tender Evaluation Period Debarment of a Tenderer Confirmation of Qualification for Award Award of Contract Termination of Procurement Proceedings Notification of Award Signing of Contract Performance Security Corrupt or Fraudulent Practices...31

13 13 SECTION III - INSTRUCTIONS TO TENDERERS (ITT) 3.1 Definitions In this tender, unless the context or express provision otherwise requires: - a) Any reference to any Act shall include any statutory extension, amendment, modification, re-amendment or replacement of such Act and any rule, regulation or order made there-under. b) Date of Tender Document shall begin with the first day and end on the last day of the month appearing on the cover page of the Tender Document. c) Day means calendar day and month means calendar month. d) KEBS wherever appearing means the Kenya Bureau of Standards or its successor(s) and assign(s) where the context so admits. e) PPOA wherever appearing means The Public Procurement Oversight Authority or its successor(s) and assign(s) where the context so admits. f) Reference to the tender or the Tender Document includes its appendices and documents mentioned hereunder and any reference to this tender or to any other document includes a reference to the other document as varied supplemented and/or replaced in any manner from time to time. g) The Procuring Entity means The Kenya Power and Lighting Company Limited or its successor(s) and assign(s) where the context so admits (hereinafter abbreviated as KPLC). h) The Tenderer means the person(s) submitting its Tender for the provision of services in response to the Invitation to Tender. i) Where there are two or more persons included in the expression the Tenderer, any act or default or omission by the Tenderer shall be deemed to be an act, default or omission by any one or more of such persons. j) words importing the masculine gender only, include the feminine gender or (as the case may be) the neutral gender. k) words importing the singular number only include the plural number and vice-versa and where there are two or more persons included in the expression the Tenderer the covenants, agreements and obligations expressed to be made or performed by the Tenderer shall be deemed to be made or performed by such persons jointly and severally.

14 Eligible Tenderers This Invitation to Tender is open to all Tenderers eligible as described in the Appendix to Instructions to Tenderers. Successful Tenderers shall provide the services in accordance with this tender and the ensuing contract Notwithstanding any other provisions of this tender, the following are not eligible to participate in the tender:- a) KPLC s employees, its Board or any of its committee members. b) Any Minister or Assistant Minister of the Government of the Republic of Kenya (GoK) c) Any public servant of GoK. d) Any member of a Board or Committee or any department of GoK. e) Any person appointed to any position by the President of Kenya. f) Any person appointed to any position by any Minister of GoK For the purposes of this paragraph, any relative i.e. spouse(s) and child(ren) of any person mentioned in sub-paragraph is also ineligible to participate in the tender. In addition, a Minister shall include the President, Vice-President or the Attorney General of GoK Tenderers shall provide the qualification information statement that the Tenderer (including all members of a joint venture and subcontractors) is not associated, or have been associated in the past, directly or indirectly, with a firm or any of its affiliates which have been engaged by KPLC to provide consulting services for the preparation of the design, specifications, and other documents to be used for the procurement of the services under this Invitation to Tender Tenderers shall not be under declarations of ineligibility for corrupt, fraudulent practices and are not amongst persons mentioned in sub-paragraphs and above Tenderers who are not under these declarations shall complete the Declaration Form strictly in the form and content as prescribed at Section XIII Those that are under the Declaration for corrupt and fraudulent practices whether currently or in the past shall not complete the Form. They will submit a suitable Form giving details, the nature and present status of their circumstances. 3.3 Joint Venture/ Consortium Tenders submitted by a joint venture of two or more firms, as partners shall comply with the following requirements: - a) the Tender Form and in case of a successful tender, the Contract Agreement Form, shall be signed so as to be legally binding on all partners of the joint venture.

15 15 b) one of the partners shall be nominated as being lead contractor, and this authorization shall be evidenced by submitting a Power of Attorney signed by legally authorized signatories of all the partners. c) The Power of Attorney which shall accompany the tender, shall be granted by the authorized signatories of all the partners as follows:- (i.) for local bidders, before a Commissioner of Oaths or a Notary Public or Magistrate of the Kenyan Judiciary. (ii.) for a foreign bidder, before a Notary Public, or the equivalent of a Notary Public, and in this regard the bidder shall provide satisfactory proof of such equivalence. d) the lead contractor shall be authorized to incur liability and receive instructions for and on behalf of any and all the partners of the joint venture and the entire execution of the contract including payment shall be done exclusively with the lead contractor All partners of the joint venture shall be liable jointly and severally for the execution of the contract in accordance with the contract terms, and a relevant statement to this effect shall be included in the authorization mentioned in paragraph (b) above as well as in the Form of Tender and the Contract Agreement Form (in case of the accepted tender) A copy of the agreement entered into by the joint venture partners shall be submitted with the tender. 3.4 Cost of Tendering The Tenderer shall bear all costs associated with the preparation and submission of its Tender. KPLC will in no case be responsible or liable for those costs, regardless of the conduct or outcome of the tendering process The price to be charged for the Tender Document shall be as indicated in the Invitation to Tender but in any case not exceeding KSh 5,000/=. 3.5 Contents of the Tender Document The Tender Document comprises the documents listed below and Addendum (where applicable) issued in accordance with paragraph 3.7 of these Instructions to Tenderers: - a) Invitation to Tender b) Tender Submission Checklist c) Instructions to Tenderers d) Appendix to Instructions to Tenderers e) Schedule of Requirements f) Price Schedule for Services g) Evaluation Criteria

16 16 h) General Conditions of Contract i) Special Conditions of Contract j) Tender Form k) Confidential Business Questionnaire Form l) Tender Security Forms m) Principal or Manufacturer s Authorization Form n) Declaration Form o) Contract Form p) Performance Security Forms q) Details of Service (i.) General Requirements (ii.) Specific Details of Services The Tenderer is expected to examine all instructions, forms, provisions, terms and specifications in the Tender Document. Failure to furnish all information required by the Tender Document or to submit a tender not substantially responsive to the Tender Document in every respect will be at the Tenderer s risk and may result in the rejection of its Tender All recipients of the documents for the proposed Contract for the purpose of submitting a tender (whether they submit a tender or not) shall treat the details of the documents as Private and Confidential. 3.6 Clarification of Documents A prospective Tenderer requiring any clarification of the Tender Document may notify the Procurement Manager in writing or by post at KPLC s address indicated in the Invitation to Tender. KPLC will respond in writing to any request for clarification of the Tender documents, which it receives not later than seven (7) days prior to the deadline for the submission of Tenders, prescribed by KPLC. Written copies of KPLC s response (including an explanation of the query but without identifying the source of inquiry) will be sent to all prospective Tenderers that have duly received the Tender Document. 3.7 Amendment of Documents At any time prior to the deadline for submission of Tenders, KPLC, for any reason, whether at its own initiative or in response to a clarification requested by a prospective Tenderer, may modify the tender documents by amendment All prospective Tenderers that have received the tender documents will be notified of the amendment(s) (hereinafter referred to or otherwise known as addendum) in writing and will be binding on them.

17 In order to allow prospective Tenderers reasonable time in which to take the amendment into account in preparing their Tenders, KPLC, at its discretion, may extend the deadline for the submission of Tenders. 3.8 Language of Tender The Tender prepared by the Tenderer, as well as all correspondence and documents relating to the tender, exchanged between the Tenderer and KPLC, shall be written in English language, provided that any printed literature furnished by the Tenderer may be written in another language provided that they are accompanied by an accurate English translation of the relevant passages in which case, for purposes of interpretation of the Tender, the English translation shall govern. The English translation shall be on the Tenderer s letterhead and shall be signed by the duly authorized signatory signing the Tender and stamped with the Tenderer s stamp. 3.9 Documents Comprising the Tender The Tender prepared and submitted by the Tenderers shall include but not be limited to all the following components: - a) Declaration Form, Tender Form and a Price Schedule completed in compliance with paragraphs 3.2, 3.10, 3.11 and b) Documentary evidence established in accordance with paragraph 3.13 that the Tenderer is eligible to tender and is qualified to perform the contract if its tender is accepted. c) Documentary evidence established in accordance with paragraph 3.14 that the services and any ancillary thereto to be provided by the Tenderer conform to the tender documents, and, d) Tender Security furnished in accordance with paragraph 3.17 e) A detailed list of previous customers as prescribed for similar services on tender and their contact addresses shall be submitted with the Tender for the purpose of reference, or for evaluation where the Details of Service so dictate Tender Form The Tenderer shall complete and sign the Tender Form and all other documents furnished in the Tender Document, indicating the services to be performed, a brief description of the services, quantity (where applicable), and prices amongst other information required.

18 Tender Prices The Tenderer shall indicate on the appropriate Price Schedule, the unit prices (where applicable) and total tender price of the services it proposes to provide under the contract Prices indicated on the Price Schedule shall be of all costs for the services including insurances, duties, Value Added Tax (V.A.T) and other taxes payable. No other basis shall be accepted for evaluation, award or otherwise Tender prices to be submitted (quoted) by the Tenderer shall remain fixed for the contract duration A price that is derived by a disclosed incorporation or usage of an international accepted standard formula shall be acceptable within the meaning of this paragraph Tender Currencies For services that the Tenderer will provide from within or outside Kenya, the prices shall be quoted in Kenya Shillings, or in another freely convertible currency in Kenya. The currency quoted must be indicated clearly on the Price Schedule of Services The exchange rate to be used for currency conversion shall be the Central Bank of Kenya selling rate ruling on the Tender closing date. (Please visit the Central Bank of Kenya website) Tenderer s Eligibility and Qualifications Pursuant to paragraph 3.2, the Tenderer shall furnish, as part of its Tender, documents establishing the Tenderer s eligibility to tender and its qualifications to perform the contract if its Tender is accepted The documentary evidence of the Tenderer s qualifications to perform the contract if its Tender is accepted shall be established to KPLC s satisfaction a) that, in the case of a Tenderer offering to perform the services under the contract which the Tenderer is not the Principal, the Tenderer has been duly authorized by the Manufacturer, Principal or Producer to provide the services. The authorization shall strictly be in the form and content as prescribed in the Manufacturer s or Principal s Authorization Form in the Tender Document b) that the Tenderer has the financial capability necessary to perform the contract. The Tenderer shall be required to provide the documents as specified in the Appendix to Instructions to Tenderers including a current Tax Compliance Certificate issued by the relevant tax authorities. c) that the Tenderer has the technical and production capability necessary to perform the contract.

19 19 d) that, in the case of a Tenderer not doing business within Kenya, the Tenderer is or will be (if awarded the contract) represented by an agent in Kenya equipped, and able to carry out the Tenderer s maintenance, repair, spare parts and stocking obligations prescribed in the Conditions of Contract and or in the Details of Service. e) that the Tenderer is duly registered and is a current member of a recognized body or institution accredited and or pertaining to that service The Tenderer will furnish KPLC with a copy of the accreditation or recognition certificate as applicable. KPLC reserves the right to subject the certificate to authentication Tenderers with a record of unsatisfactory or default in performance obligations in any contract shall not be considered for evaluation or award. For the avoidance of doubt, this shall include any Tenderer with unresolved case(s) in its obligations for more than two (2) months in any contract Conformity of Services to Tender Documents The Tenderer shall furnish, as part of its tender, documents establishing the conformity to the Tender Document of all services that the Tenderer proposes to perform under the contract The documentary evidence of conformity of the services to the Tender Document may be in the form of literature, drawings, and data, and shall (where applicable) consist of: - a) a detailed description of the essential technical and performance characteristics of the services whether in brochures, catalogues, drawings or otherwise, b) a list giving full particulars, including available source and current prices of spare parts, special tools and other incidental apparatus necessary for the proper and continuing performance of the services for a minimum period of two (2) years following commencement of the provision of the services to KPLC, and, c) duly completed Statement of Compliance to KPLC s Details of Service demonstrating substantial responsiveness of the service to those Details or, a statement of deviations and exceptions to the provisions of the Details of Service For purposes of the documentary and other evidence to be furnished pursuant to sub-paragraphs , and paragraph 3.15, the Tenderer shall note that standards for workmanship, material, and equipment, designated by KPLC in its Details of Service are intended to be descriptive only and not restrictive. The Tenderer may adopt higher standards in its Tender, provided that it demonstrates

20 20 to KPLC s satisfaction that the substitutions ensure substantial equivalence to those designated in the Details of Service Demonstration(s), Inspection(s) and Test(s) Where required in the tender, all Tenderers shall demonstrate ability of performance of the required service in conformity with the Details of Services KPLC or its representative(s) shall have the right to inspect/ test the Tenderer s capacity, equipment, premises, and to confirm their conformity to the tender requirements. This shall include the quality management system. KPLC s representative(s) retained for these purposes shall provide appropriate identification at the time of such inspection/ test KPLC shall meet its own costs of the inspection/ test. Where conducted on the premises of the Tenderer(s), all reasonable facilities and assistance, including access to drawings and production data, shall be furnished to the inspectors at no charge to KPLC Demonstration, Inspection/ Test Report(s) shall be completed upon conclusion of the inspection/ tests. This Report will be considered at time of evaluation and or award Warranty Where required in the Tender, all Tenderers must also provide a Warranty that warrants that the services to be provided under the contract are new, unused and or are of the most recent or current specification and incorporate all recent improvements in design and materials unless provided otherwise in the Tender. The Warranty shall also warrant that the services in the Tenderer s bid have no defect arising from manufacture, materials or workmanship or from any act or omission of the Tenderer that may develop under normal use or application of the services under the conditions obtaining in Kenya The Warranty will remain valid for one (1) year after the services, or any part thereof as the case may be, have been used or provided or performed as indicated in the contract Tender Security The Tenderer shall furnish, as part of its Tender, a tender security for the amount specified in the Appendix to Instructions to Tenderers The tender security shall be either one or a combination of the following:- a) an original Bank Guarantee that is strictly in the form and content as prescribed in the Tender Security Form (Bank Guarantee) in the Tender Document.

21 21 b) an original Insurance Bond that is strictly in the form and content as prescribed in the Tender Security Form (Insurance Bond) in the Tender Document. c) For Local bidders, Standby Letters of Credit (LC). All costs, expenses and charges levied by all banks party to the LC shall be prepaid by the Tenderer. The LC must contain all the mandatory conditions of payment to KPLC as prescribed in the Tender Security (Letters of Credit) provided in the Tender Document. d) For Foreign bidders, Standby Letters of Credit (LC) confirmed by a bank in Kenya. All costs, expenses and charges levied by all banks party to the LC including confirmation charges shall be prepaid by the Tenderer. The LC must contain all the mandatory conditions of payment to KPLC as prescribed in the Tender Security (Letters of Credit) provided in the Tender Document The tender security is required to protect KPLC against the risk of the Tenderer s conduct which would warrant the security s forfeiture pursuant to paragraph The Tender Security shall be denominated in Kenya Shillings or in another freely convertible currency, and shall be issued by either a commercial bank licensed by the Central Bank of Kenya or an approved insurance company acceptable to KPLC, or both bank and insurance company. In both cases, the bank and the insurance company must be located in Kenya. Currently, the approved and acceptable insurance companies are listed below:- APA Insurance Co. Ltd, Cannon Assurance Co. Ltd, Co-Operative Insurance Co. Ltd, Corporate Insurance Co. Ltd, First Assurance Co. Ltd, The Heritage AII Insurance Co. Ltd, Jubilee Insurance Co. Ltd, Kenindia Insurance Co. Ltd, Madison Insurance Co. Ltd, Mercantile Life and General Assurance Co. Ltd, REAL Insurance Co. Ltd and UAP Provincial Insurance Co. Ltd The Tender Security shall be valid for thirty (30) days beyond the validity of the tender KPLC shall seek authentication of the Tender Security from the issuing bank or insurance company. It is the responsibility of the Tenderer to sensitize its issuing bank or insurance company on the need to respond directly and expeditiously to queries from KPLC. The period for response shall not exceed five (5) days from the date of KPLC s query. Should there be no conclusive response by the bank or insurance company within this period, such Tenderer s Tender Security may be deemed as invalid and the bid rejected.

22 Any Tender not secured in accordance with this paragraph will be rejected by KPLC as non-responsive, pursuant to paragraph The unsuccessful Tenderer s Tender Security will be released as promptly as possible, in any of the following circumstances: - a) the procurement proceedings are terminated b) KPLC determines that none of the submitted Tenders is responsive c) a contract for the procurement is entered into d) the Tenderer does not qualify for Financial Evaluation in accordance with paragraph The successful Tenderer s Tender Security will be released upon the successful Tenderer s signing the contract, pursuant to paragraph 3.39 and furnishing an authentic Performance Security, pursuant to paragraph The Tender Security shall be forfeited a) if the Tenderer withdraws its Tender after the deadline for submitting Tenders but before the expiry of the period during which the Tenders must remain valid b) if the Tenderer rejects a correction of an arithmetic error c) if the Tenderer fails to enter into a written contract in accordance with paragraph 3.39 d) if the successful Tenderer fails to furnish the performance security in accordance with paragraph 3.40 e) if the Tenderer fails to extend the validity of the tender security where KPLC has extended the tender validity period in accordance with paragraph Validity of Tenders Tenders shall remain valid for ninety (90) days after the date of tender opening as specified in the Invitation to Tender or as otherwise may be prescribed by KPLC, pursuant to paragraph A Tender that is valid for a shorter period shall be rejected by KPLC as non-responsive In exceptional circumstances, KPLC may extend the Tender validity period. The extension shall be made in writing. The tender security provided under paragraph 3.17 shall also be extended. A Tenderer shall not be required nor permitted to modify its tender during the extended period Alternative Offers Only main offers shall be considered, as alternative offers are not acceptable.

23 Number of Sets of and Tender Format The Tenderer shall prepare three complete sets of its Tender, identifying and clearly marking the ORIGINAL TENDER, COPY 1 OF TENDER, and COPY 2 OF TENDER as appropriate. Each set shall be properly bound. The copies shall be a replica of the Original. Each copy will be deemed to contain the same information as the Original The Tenderer shall divide and mark the sets as follows: NON-FINANCIAL Three (3) sets i.e. Original, Copy 1 and Copy FINANCIAL Three (3) sets i.e. Original, Copy 1 and Copy The Tenderer shall ensure that - a) the Non-Financial sets, envelopes or packages do not contain any or all the information that reveals the tender price(s) of the goods and the required audited financial statements. b) no financial documents or items are included or inserted in the Non- Financial sets, envelopes or packages. c) A Financial set, document or item includes one that contains any or all information on the tender price(s) of the goods and the required audited financial statements The Tender shall be bound and divided clearly in descending order as listed in the Tender Submission Checklist. The divisions are for clear identification and marking of the respective documents or information that are serially numbered in the Checklist The order and arrangement as indicated in the Tender Submission Checklist will be considered as the Tender Formats Any Tender not prepared and signed in accordance with this paragraph, and in particular sub-paragraphs , and may be rejected by KPLC as non-responsive, pursuant to paragraph Preparation and Signing of the Tender The Original and all copies of the Tender shall be typed or written in indelible ink. They shall be signed by the Tenderer or a person or persons duly authorized to bind the Tenderer to the contract The authorization shall be indicated by a written Power of Attorney granted by the Tenderer to the authorized person before any of the following persons:- a) For local Tenderers, a Commissioner of Oaths or a Notary Public or a Magistrate of the Kenyan Judiciary. b) For foreign Tenderers, a Notary Public in the country of the Tenderer. In either case above, the Power of Attorney shall accompany the Tender All pages of the Tender, including un-amended printed literature, shall be initialled by the person or persons signing the Tender and serially numbered.

24 The Tender shall have no interlineations, erasures, or overwriting except as necessary to correct errors made by the Tenderer, in which case such corrections shall be initialled by the person or persons signing the Tender KPLC will assume no responsibility whatsoever for the Tenderer s failure to comply with or observe the entire contents of this paragraph Any Tender not prepared and signed in accordance with this paragraph may be rejected by KPLC as non-responsive, pursuant to paragraph Sealing and Outer Marking of Tenders The Tenderer shall seal the Original and each Copy of the Tender in separate envelopes or packages, duly marking the envelopes or packages as ORIGINAL, COPY 1 OF TENDER and COPY 2 OF TENDER. The envelopes or packages shall then be sealed in outer envelopes or packages The Tenderer shall also ensure that the inner envelopes or packages are also marked NON-FINANCIAL and FINANCIAL, respectively The inner and outer envelopes or packages shall - a) be addressed to KPLC at the address given in the Invitation to Tender, b) bear the tender number and name as per the Invitation to Tender and the words, DO NOT OPEN BEFORE. as specified in the Invitation to Tender All inner envelopes or packages shall also indicate the name and full physical, telephone, , facsimile and postal contacts of the Tenderer to enable the Tender to be returned unopened in circumstances necessitating such return including where Tenders are received late, procurement proceedings are terminated before tenders are opened or the Tender does not qualify for further financial evaluation in accordance with the Summary of Evaluation Process set out in the Tender Document If the envelopes or packages are not sealed and marked as required by this paragraph, KPLC will assume no responsibility whatsoever for the Tender s misplacement or premature opening. A tender opened prematurely for this cause will be rejected by KPLC and promptly returned to the Tenderer Deadline for Submission of Tenders Tenders must be received by KPLC by the time and at the place specified in the Invitation to Tender KPLC may, at its discretion, extend this deadline for submission of Tenders by amending the tender documents in accordance with paragraph 3.7, in which case all rights and obligations of KPLC and the Tenderer s previously subject to the initial deadline, will therefore be subject to the deadline as extended.

25 Modification and Withdrawal of Tenders The Tenderer may modify or withdraw its Tender after it has submitted it, provided that written notice of the modification, including substitution or withdrawal of the Tender is received by KPLC prior to the deadline prescribed for submission of tenders The Tenderer s modification or withdrawal notice shall be prepared, sealed, marked, and dispatched in accordance with the provisions of paragraphs 3.20, 3.21 and A withdrawal notice may also be sent by facsimile, electronic mail, cable or telex but followed by an original signed confirmation copy, postmarked not later than the deadline for submission of Tenders No Tender may be modified after the deadline for submission of Tenders No Tender may be withdrawn in the interval between the deadline for submission of tenders and the expiration of the period during which the Tender must remain valid. Withdrawal of a Tender during this interval shall result in forfeiture of the Tenderer s Tender Security Opening of Tenders KPLC shall, in accordance with the sub-paragraphs below, adopt a two tender opening system for this Tender At the first opening, KPLC shall open all Tenders promptly after the tender closing date and time, at the location specified in the Invitation to Tender or as may otherwise be indicated. For purposes of clarity, this opening shall include the outer Financial Proposals envelopes or packages of the duly submitted tenders The Tenderer s names, tender modifications or withdrawals, the presence or absence of requisite Tender Security, the number of sets of both Non-Financial as well as Financial Proposals tender documents duly received and such other details as KPLC, at its discretion, may consider appropriate, will be announced at the first opening Tenderers whose tenders qualify after preliminary and technical evaluation will be promptly invited for the second opening i.e. of their detailed Financial sets, and in any event not more than five (5) days after completion of the process regarding the earlier evaluation(s) At the opening of the detailed Financial sets, tender prices, discounts, and such other details as KPLC, at its discretion, may consider appropriate, will be announced at this opening The Tenderers or their representatives may attend the openings and those present shall sign a register evidencing their attendance Tenders not opened and read out at the first tender opening shall not be considered further for evaluation, award or otherwise irrespective of the circumstances.

26 Process to be Confidential After the First opening of tenders, information relating to the examination, clarification, evaluation and comparisons of tenders and recommendations arising there-from shall not be disclosed to a Tenderer or other person(s) not officially concerned with such process until conclusion of that process Conclusion of that process shall be deemed to have occurred, at the latest, by the date and time KPLC announces to qualified bidder(s) the date and time for the second opening of the tenders i.e. of the detailed Financial sets. In any event, official disclosure by KPLC of any information upon conclusion of that process shall only be to the unsuccessful bidders and may contain only the information permissible by law in summary form After the second opening of tenders, information relating to the further examination, clarification, evaluation and comparisons of tenders and recommendations concerning the award of Contract shall not be disclosed to a Tenderer or other person(s) not officially concerned with such process until the award of Contract is announced Any effort by a Tenderer to influence KPLC or any of its staff members in the process of examination, evaluation and comparison of tenders and information or decisions concerning award of Contract may result in the rejection of the Tenderer s tender Clarification of Tenders and Contacting KPLC To assist in the examination, evaluation and comparison of Tenders KPLC may, at its discretion, ask the Tenderer for a clarification of its Tender. The request for clarification and the response shall be in writing, and no change in the prices or substance of the Tender shall be sought, offered, or permitted The Tenderer is required to provide timely clarification or substantiation of the information that is essential for effective evaluation of its qualifications. It is the responsibility of the Tenderer to provide in writing the clarification or substantiation which should reach KPLC within five (5) days from the date of KPLC s query. Such writing may include by electronic mail, facsimile or postal mail. Should there be no conclusive response within this period, it shall result in the Tenderer s disqualification Save as is provided in this paragraph and paragraph 3.26 above, no Tenderer shall contact KPLC on any matter related to its Tender, from the time of the tender openings to the time the contract is awarded Any effort by a Tenderer to influence KPLC in its decisions on tender evaluation, tender comparison, tender recommendation(s) or contract award may result in the rejection of the Tenderer s Tender.

27 Preliminary Evaluation and Responsiveness Prior to the detailed Technical and Financial evaluation, KPLC will determine the substantial responsiveness of each Tender. For purposes of this tender, a substantially responsive Tender is one that conforms to the requirements of Preliminary Evaluation. KPLC s determination of a Tender s responsiveness is to be based on the contents of the Tender itself without recourse to extrinsic evidence KPLC will examine the Tenders to determine whether they conform to the Preliminary Evaluation Criteria set out in Section VI Evaluation Criteria Notwithstanding the contents of the foregoing sub-paragraphs, if a Tender is not substantially responsive, it will be rejected at the earliest stage of evaluation by KPLC and cannot subsequently be made responsive by the Tenderer by correction of any non conformity Minor Deviations, Errors or Oversights KPLC may waive any minor deviation in a Tender that does not materially depart from the requirements of the goods and or services set out in the Tender Document Such minor deviation shall be quantified to the extent possible, shall be taken into account in the evaluation process, and, shall be applied uniformly and consistently to all qualified Tenders duly received by KPLC KPLC may waive errors and oversights that can be corrected without affecting the substance of the Tender Technical Evaluation and Comparison of Tenders KPLC will further evaluate and compare the Tenders that have been determined to be substantially responsive, in compliance to the Details of Services set out in the Tender Document and as per the prescribed Evaluation Criteria The Operational Plan is a critical aspect of the Tender. KPLC requires that the Services shall be performed at the time specified in the Schedule of Requirements. KPLC s evaluation of a tender will also take into account the Operational Plan proposed in the Tender. Tenderers offering to perform longer than KPLC s required delivery time will be treated as non-responsive and rejected For Tenders that do not qualify past the technical evaluation stage, the Financial sets, will be promptly returned unopened to the Tenderers together with the release and discharge of their Tender Securities. In any event such return, release